Archive for the ‘Discovery’ Category

Prompted by a tweet from Scott Greenfield this morning, we read a short editorial the New York Times did a couple of days ago, arguing that federal and state prosecutors should adopt open-file discovery policies, in order to limit Brady violations and promote justice. We’d missed it the first time around, because … well, because we never bother to read NYT editorials.

This one is decent enough, so far as it goes. The Times points out that it’s up to the prosecutor to decide whether something is material enough to disclose under Brady, and so defendants very often don’t learn of facts that might have been favorable to them. With full disclosure, perhaps fewer defendants who are over-charged or improperly charged would plead guilty, and perhaps fewer wrongful convictions might result.

Yeah, but …

Here’s the thing: “Open file” policies are rarely that. Prosecutors’ offices with open file policies rarely (if ever) make their complete file available to the defense. More often “open file” just means they comply with their existing discovery obligations without putting up too much of a fight.

Prosecutors in general are unwilling to engage in true open file discovery, and for reasons that are anything but nefarious. It would be like playing high-stakes poker in a game where you and only you have to show all of your cards, all of the time. Unless you have four aces and a joker every hand, that’s a losing strategy. Defendants will be able to see all the weaknesses of the evidence with plenty of time to exploit them. People who “should have been” convicted will go free.

In practice, prosecutors only show their hand if it’s going to make the defendant fold. Or to the extent that it will persuade the defendant to fold. Show the ace, but don’t bother showing the 2, 6, 7 and jack.

Of course, it’s a misplaced concern to worry that people who “should have been convicted” will go free. If the evidence does not establish guilt beyond a reasonable doubt, then it doesn’t matter whether they did it or not, they don’t deserve to be convicted. It’s not even correct to think of whether they deserve to be convicted — the concern is whether the State is entitled to punish them. If the government’s evidence, all of it, is too weak to convict, then the State doesn’t get to punish. (What the defendant deserves only enters into it when asking how much punishment to inflict.)

There’s a great post today on the New York Criminal Defense blog, explaining the history and proper use of the Bill of Particulars in NY criminal practice. Our readers are encouraged to check it out here.

This has long been a pet peeve of ours. An astounding number of prosecutors just don’t get the concept of a Bill of Particulars in this state. And far too few defense attorneys and judges hold the People to their obligations here.

Which is bizarre, because it’s really quite simple. All the Bill needs to do is specify what facts the People intend to prove which make out the elements of the crimes charged in the indictment, without explaining how the People intend to prove those facts.

For example, a buy-and-bust with stash and cash might have a Bill that states, at such-and-such time and place, “the defendant handed to an undercover police officer two bags containing crack cocaine in exchange for money. Twenty-four bags containing crack cocaine were recovered from the ground where the defendant threw them.” That’s all that’s needed. No mention is required of how the People will prove the stuff is crack, or anything about the money that was recovered, or anything else.

And yet prosecutors keep doing it wrong. We routinely get Bills of Particular that contain nothing more than bare conclusions of law, such as “the defendant sold crack cocaine to a police officer and possessed crack cocaine with the intent to sell it.” Or worse than that, just a recitation of the time, date and location, and an assurance that the indictment contains all the information that is needed.

Failure to provide a sufficient Bill renders the indictment defective. We’re amazed that more defense counsel don’t pursue this aggressively, and educate their judges who may be a little complacent given the lack of rigor by many attorneys.

Once again, we highly recommend this article to our readers. It was written, by the way, by Jill Paperno of the Monroe County Public Defender’s office, so kudos to Jill.

Nathaniel Burney writes The Criminal Lawyer mainly for his own amusement and that of his sexy sexy followers. Although he is brilliant, talented and charming, he's modest enough to admit that he's also dashingly handsome. You can learn more about him at his firm's website.

This blog does not constitute legal advice, and does not create or imply any attorney-client relationship. If you have a real legal issue, the internet is not a substitute for a real live lawyer. Your local county bar association should be able to recommend one for you.